Citation Nr: 1039653 Decision Date: 10/22/10 Archive Date: 10/27/10 DOCKET NO. 10-03 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1952 to November 1953. He received the Combat Infantry Badge. The appellant is the Veteran's widow. This matter initially came before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in New York, New York. In that decision, the RO denied entitlement to service connection for the cause of the Veteran's death. The appellant testified before the undersigned at an April 2010 hearing at the RO (Travel Board hearing). A transcript of that hearing has been associated with the Veteran's claims folder. In May 2010, the Board remanded this matter for further development. In May 2010, the Board granted the appellant's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in July 2008; the immediate cause of death was cardiopulmonary arrest, due to or as a consequence of aortic dissection. 2. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), rated 50 percent disabling, effective June 2, 2003. 3. The Veteran's service-connected PTSD contributed to the fatal aortic dissection. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the Board is granting the claim for service connection for the cause of the Veteran's death, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Pursuant to 38 U.S.C.A. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. In determining whether the disability that resulted in the death of the veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In a DIC claim based on cause of death, the first requirement for service connection, evidence of a current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran died in July 2008. His death certificate listed the primary cause of death as cardiopulmonary arrest, due to or as a consequence of aortic dissection. At the time of his death, service connection was in effect for PTSD. Furthermore, the Veteran's medical records reveal that he had been treated for and diagnosed as having hypertension. The appellant contends that the Veteran's hypertension caused his fatal aortic dissection and that his service-connected PTSD contributed to his hypertension. There are conflicting medical opinions as to whether a relationship existed between the Veteran's fatal aortic dissection and his service-connected PTSD. The Board, therefore, must weigh the credibility and probative value of these opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). In an August 2008 letter, Harvey Lerner, M.D., stated that the Veteran died of the effects of a dissecting aortic aneurysm. He opined that the aortic dissection was likely ("more likely than not") the result of the Veteran's hypertension. This opinion was based on the fact that a dissecting aortic aneurysm was likely ("more likely than not") to occur in people with hypertension. In a September 2009 letter, Dr. Lerner stated that he began treating the Veteran for hypertension in 2003 and that hypertension, along with defects in the aortic wall itself, were factors in an aortic dissection. He opined that the presence of hypertension, which was likely ("more likely than not") caused by the Veteran's PTSD, over the years facilitated the evolution of thoracic aortic aneurysm where it might undergo dissection. No apparent reasoning or explanation was provided as to the opinion concerning the relationship between the Veteran's PTSD and hypertension. In November 2009, a VA physician reviewed the Veteran's claims file and opined that there was no medical evidence to support a causal relationship between hypertension and PTSD. The apparent reasoning behind this opinion was that there was no medical evidence in the medical literature to support such a relationship. In May 2010, Craig N. Bash, M.D. reviewed the Veteran's medical records and death certificate and opined that after considering every possible sound medical etiology/principal, it was likely ("to at least the 50% level of probability") that the Veteran's hypertension was caused by his PTSD and that his hypertension caused his fatal aortic dissection. This opinion was based on the fact that the Veteran had a serious form of PTSD (rated as 50 percent disabling) and that psychiatric disorders and cardiovascular disorders, such as PTSD and hypertension/coronary artery disease, had been extensively studied. He cited several pieces of medical literature and reasoned that based on such studies, the Veteran's disease likely started at the time of plaque formation, which progressed over many years. Agitation and autonomic arousal secondary to PTSD resulted in activation of the sympathoadrenal/pituitary-adrenal axis, which induced high blood pressure and increased fatty acids/plaque. Hypertension and plaque were well known causes of aortic dissection and aneurysm. The Veteran's medical records did not contain any other more likely cause for his hypertension. Thus, Dr. Bash concluded that the Veteran's fatal aortic dissection and aneurysm were caused by his PTSD and hypertension, as supported by the medical literature. Dr. Bash wrote that the VA physician's opinion that there was no medical literature to support a relationship between hypertension and PTSD was incorrect because the literature was full of research articles and book chapters which supported such a relationship, the VA physician did not acknowledge or address any such evidence, and he did not otherwise fully explain the nature and etiology of the Veteran's cause of death. In July 2010, the VA physician who provided the November 2009 opinion re-reviewed the Veteran's claims file and opined that the Veteran's hypertension was not likely ("less likely") secondary to his PTSD and that it was not likely ("less likely as not") that his PTSD contributed to or hastened his death secondary to fatal aortic dissection. These opinions were apparently based on the fact that the Veteran had been diagnosed as having essential hypertension and that hypertension was a risk factor of aortic dissection. Dr. Lerner's August 2008 and September 2009 opinions and Dr. Bash's May 2010 opinion are accompanied by rationales that are consistent with the evidence of record. Therefore, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). With regard to whether a relationship existed between the Veteran's hypertension and his service-connected PTSD, Dr. Lerner's September 2009 opinion is unaccompanied by any explanation or reasoning and is therefore of limited probative value. Id. While the November 2009 and July 2010 opinions of the VA physician and Dr. Bash's May 2010 opinion are all accompanied by a rationale, the Board concludes that Dr. Bash's May 2010 opinion that it was likely that a relationship existed between the Veteran's PTSD and his fatal aortic dissection is more probative than the VA physician's contrary opinions. Dr. Bash provided a very thorough and detailed explanation that was based on a review of the Veteran's medical records and various pieces of medical literature. Furthermore, he specifically addressed the VA physician's November 2009 opinion and explained the reasons why the opinion was incorrect. The VA physician, however, did not discuss any of the medical literature concerning the possible relationship between psychiatric disabilities, such as PTSD, and hypertension and neither acknowledged nor discussed Dr. Bash's May 2010 opinion. The most probative evidence is in favor of a conclusion that the Veteran's service-connected PTSD at least contributed to hypertension and that an etiological relationship existed between hypertension and his fatal aortic dissection. Therefore, the Veteran's service-connected PTSD, while not a principal cause of his death, contributed substantially or materially to his death. Resolving all reasonable doubt in favor of the appellant, the Board concludes that the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b); 38 C.F.R. §§ 3.303, 3.312. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs